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Guideline for an approach to undertaking a comparative analysis (or “gap analysis”) of the Work in

Fishing Convention, 2007 (No. 188) and national laws, regulations or other measures concerning

decent conditions of work on board fishing vessels with regard to minimum requirements for work

on board; conditions of service; accommodation and food; occupational safety and health

protection; medical care and social security

Purpose of this Guideline

These guidelines suggest the approach the Government may wish to follow in determining

the extent to which its laws and regulations and other measures would need to be adjusted

or complemented to meet the requirements of the Work in Fishing Convention, 2007 (No.

188).

Undertaking a comparative or “gap” analysis is the first step towards ratification of the

Convention. It consists of a detailed legal analysis of those provisions of national laws,

regulations or other measures that are intended to give effect to the provisions of

Convention No. 188, and it clearly indicates where changes are needed to amend or

otherwise adjust national laws or regulations, or to take other measures, to bring them in

line with at least the minimum provisions of the Convention. An example of the matrix

form of a gap analysis is provided in Appendix I of this document.

In keeping with Article 19, paragraph 8 of the ILO Constitution, it should be borne in mind

that “In no case shall the adoption of any Convention or Recommendation by the

Conference, or the ratification of any Convention by any Member, be deemed to affect any

law, award, custom or agreement which ensures more favourable conditions to the workers

concerned than those provided for in the Convention or Recommendation.” It should be

noted that a similar provision, is found in Convention No. 188 in Article 6, paragraph 2:

“Nothing in this Convention shall affect any law, award or custom, or any agreement

between fishing vessel owners and fishers, which ensures more favourable conditions than

those provided for in this Convention.”

It would be very helpful if the gap analysis could be preceded by a brief description of the fishing

sector (fleet size and composition, number of fishers, etc.)

The gap analysis should include copies of all relevant legal texts (including texts in the original

language).

Breadth of issues covered by the Convention

As noted above, the Convention addresses a very wide range of issues, including minimum

requirements for work on board; conditions of service; accommodation and food; occupational

safety and health protection; medical care and social security. It will therefore be necessary to

review laws, regulations and other measures falling within the area of responsibility of several

ministries, departments and agencies, and perhaps also regional or local laws, regulations or other

measures. This might involve, for example: the labour ministry, agriculture/fisheries ministry,

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maritime safety authorities, social security department, port health authorities, coast guard, national

statistics institute, and perhaps others.

Scope of the Convention

Article 2, paragraph 1, provides that “Except as otherwise provided herein, this Convention applies

to ALL fishers and all fishing vessels engaged in commercial fishing operations”. This should be read

in conjunction with the definitions in Article 1. Looking at Article 1(a), note that “commercial

fishing” means ALL fishing operations, including fishing operations on rivers, lakes or canals, with the

exception of subsistence fishing and recreational fishing (See Appendix II for an ILO informal opinion

concerning the meaning of “subsistence fishing”).

When undertaking the gap analysis, it will therefore be very important to review the laws,

regulations and other measures concerning all fishers and fishing vessels engaged in commercial

fishing operations. The analysis should not, for example, automatically exclude “artisanal” or “small-

scale” fishing vessels from its coverage.

Note that Article 1(e) provides that “fisher means every person employed or engaged in any capacity

or carrying out an occupation on board any fishing vessel, including persons working on board who

are paid on the basis of a share of the catch but excluding pilots, naval personnel, other persons in

the permanent service of a government, shore-based persons carrying out work aboard a fishing

vessel and fisheries observers”.

The scope of the Convention, as noted above, does NOT cover fishers who are not working on

vessels and it would NOT cover fishworkers working ashore (for example, in post-harvesting

activities such as processing (when done ashore) and marketing). Such workers could, however, be

addressed in a separate document.

Note that, in accordance with Article 2, paragraph 2, “In the event of doubt as to whether a vessel is

engaged in commercial fishing, the question shall be determined by the competent authority after

consultation”. It will be important to ensure that the gap analysis reflects the laws, regulations or

other measures concerning all fishers and vessels engaged in commercial fishing vessel operations.

If there is doubt at this stage (the stage of undertaking the gap analysis) these fishers and vessels

should be included.

Article 2, paragraph 3, provides that “Any Member, after consultation, may extend, in whole or in

part, to fishers working on smaller vessels the protection provided in this Convention for fishers

working on vessels of 24 metres in length and over”. This provision has led some to believe that

Convention No. 188 is mandatory only for vessels over 24 metres in length. This is not the case.

What this provision means is that a State may, after consultation, decide to apply some of the

provisions concerning these larger vessels to smaller vessels. The Convention also includes

provisions for ALL vessels. For example, Article 29 (which concerns medical care) requires ALL

vessels to carry “instructions or other information in a language and format understood by the fisher

or fishers”. Article 30 (which also concerns medical care) requires that “fishing vessels of 24 metres

in length and over, taking into account the number of fishers on board, the area of operation and

the duration of the voyage” *...+ “shall carry a medical guide adopted or approved by the competent

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authority, or the latest edition of the International Medical Guide for Ships”. However, through

Article 2, paragraph 3, a State may decide, after consultation, to also require the smaller vessels

(those under 24 metres in length) to carry a medical guide and not only instructions.

Implementation

Note that Article 6, paragraph 1 provides that: “Each Member shall implement and enforce laws,

regulations or other measures that it has adopted to fulfil its commitments under this Convention

with respect to fishers and fishing vessels under its jurisdiction” and that “Other measures may

include collective agreements, court decisions, arbitration awards, or other means consistent with

national law and practice”.

As noted, the length of the vessel is one of the primary means of determining whether or not certain

provisions will apply to a particular vessel. Note that, through Article 5, a State may choose to use

Length Overall (LOA) (defined in Article 1(j)) in place of Length (L) (defined in Article 1(i)) throughout

the Convention, and may also use gross tonnage (gt) (as defined in Article 1(h)) for certain

requirements concerning accommodation (See discussion below with respect to Annex III of the

Convention).

Structure of the Convention – provisions for all vessels and provisions for larger vessels and/or

those at sea for longer periods of time

It is very important when undertaking the gap analysis to be aware that for many issues covered by

the Convention (e.g. medical care, as noted above, for occupational safety and health, for

accommodation) the Convention has requirements for ALL vessels and then has higher requirements

for vessels 24 metres in length or more or vessels at sea for longer periods (e.g. more than three

days), or sometimes either or both. It is therefore important, when reviewing national laws,

regulations or other measures, to determine if these are related to vessel size or time spent at sea.

Exclusions or exemptions

Convention No. 188 provides for two main types of exclusions/exemptions:

Article 3 provides for the possibility of exclusions “where the application of the

Convention raises special problems of a substantial nature in the light of the

particular conditions of service of the fishers or of the fishing vessels' operations

concerned”. These exclusions:

may be made after consultation by the competent authority with the

representative organizations of employers and workers concerned, and

in particular the representative organizations of fishing vessel owners

and fishers, where they exist;

may concern all the requirements of this Convention, or only certain of

its provisions; and

may be made with respect to:

fishing vessels engaged in fishing operations in rivers, lakes or

canals;

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limited categories of fishers or fishing vessels.

When such exclusions are permitted, the competent authority must, where

practicable, take measures, as appropriate, to extend progressively the

requirements under this Convention to the categories of fishers and fishing vessels

concerned.

Therefore, when undertaking the gap analysis, it is necessary to consider all fishers

and all commercial fishing vessels. If fishing vessels are excluded because they are

engaged in fishing operations in rivers, lakes or canals, or because they are among

the limited categories of fishers or fishing vessels excluded, it will still be necessary

to reflect, in the gap analysis document, any laws, regulations or other measures

that may provide protection with respect to the issues addressed in the

requirements of the Convention. This will be necessary in order to undertake the

obligations set out in Article 3, paragraph 3.

Article 4 provides for the possibility of “progressive implementation” of certain

specified provisions of the Convention “where it is not immediately possible for a

Member to implement all of the measures provided for in this Convention owing to

special problems of a substantial nature in the light of insufficiently developed

infrastructure or institutions”. The provisions concerned are:

Article 10, paragraph 1 (which concerns medical examination)

Article 10, paragraph 3, in so far as it applies to vessels remaining at sea for

more than three days (which also concerns medical examination)

Article 15 (which concerns the crew list)

Article 20 (which concerns the fisher’s work agreement)

Article 33 (which concerns risk evaluation with respect to occupational

safety and health and accident prevention)

Article 38 (which concerns protection in the case of work-related sickness,

injury or death)

“Progressive implementation” can only be used in accordance with a plan drawn up

in consultation with the representative organizations of employers and workers

concerned, and in particular the representative organizations of fishing vessel

owners and fishers, where they exist. It cannot be used with respect to fishing

vessels which:

are 24 metres in length and over; or

remain at sea for more than seven days; or

normally navigate at a distance exceeding 200 nautical miles from the

coastline of the flag State or navigate beyond the outer edge of its

continental shelf, whichever distance from the coastline is greater; or

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are subject to port State control as provided for in Article 43 of this

Convention, except where port State control arises through a situation of

force majeure.

It will therefore be important to obtain information on the fishing vessels in the

country concerned, particularly as concerns vessels over 24 metres in length, those

navigating long distances from the coastline of the State, and those undertaking

voyages to foreign ports. It may be helpful to include a chart or matrix containing

such information as an introduction or annex to the gap analysis.

Other exemptions may be possible in specific Articles of the Convention. For

example, in Article 10 (which concerns medical examination), paragraph 1 provides

that “No fishers shall work on board a fishing vessel without a valid medical

certificate attesting to fitness to perform their duties” however paragraph 2 provides

that “ The competent authority, after consultation, may grant exemptions from the

application of paragraph 1 of this Article, taking into account the safety and health of

fishers, size of the vessel, availability of medical assistance and evacuation, duration

of the voyage, area of operation, and type of fishing operation”.

Other types of flexibility in the Convention

Substantial equivalence (provided for in Article 14(3) and Article 28(2))

o With respect to manning and hours of rest, Article 14, paragraph 3 provides

that: “The competent authority, after consultation, may establish alternative

requirements to those in paragraphs 1 and 2 of this Article. However, such

alternative requirements shall be substantially equivalent and shall not

jeopardize the safety and health of the fishers.”

o With respect to accommodation, Article 28, paragraph 2, provides that: “A

Member which is not in a position to implement the provisions of Annex III

may, after consultation, adopt provisions in its laws and regulations or other

measures which are substantially equivalent to the provisions set out in

Annex III, with the exception of provisions related to Article 27.”

o “Substantial equivalence” means that there may be differences or deviations

in detail as between the requisite national laws, regulations or other

measures and the prescriptions of the Convention, but that the States

should engage themselves to assure that the general goals intended by the

provisions of the Convention are respected. Thus, where there is not full

conformity with the detailed prescriptions of the Convention, the test to be

applied involves first determining what the general goal or goals of the

Convention is or are, i.e. its object or objects and purpose or purposes.

These may present themselves as one main general goal and several

subordinate goals. The test for substantial equivalence may then be, first,

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whether the State has demonstrated its respect for or acceptance of the

main general goal of the Convention and enacted laws or regulations which

conduce to its realisation; and if so, secondly, whether the effect of such

laws or regulations is to ensure that in all material respects the subordinate

goals of the Convention are achieved.

Flexibility in Annex III concerning Accommodation

Flexibility with respect to existing and undecked vessels – Note that,

in accordance with paragraph 2, Annex III “shall apply to all new,

decked fishing vessels, subject to any exclusions provided for in

accordance with Article 3 of the Convention. The competent

authority may, after consultation, also apply the requirements of

this Annex to existing vessels, when and in so far as it determines

that this is reasonable and practicable.”

Flexibility with respect to vessels at sea less than 24 hours where

fishers do not live on board – Note that, in accordance with

paragraph 2 of Annex III: “The competent authority, after

consultation, may permit variations to the provisions of this Annex

for fishing vessels normally remaining at sea for less than 24 hours

where the fishers do not live on board the vessel in port. In the

case of such vessels, the competent authority shall ensure that the

fishers concerned have adequate facilities for resting, eating and

sanitation purposes.” Also note, in paragraph 4, that such variations

must be reported to the ILO.

Flexibility with respect to using gross tonnage instead of Length (L)

or Length Overall (LOA) for certain provisions of Annex III. These

provisions are cited in Annex III, paragraph 8, and concern the

following paragraphs of this Annex:

paragraph 14 (headroom)

paragraphs 37, 38 (floor area in sleeping rooms)

paragraph 41 and 43 (persons in sleeping rooms)

paragraph 46 (minimum inside dimensions of the berths)

paragraph 49 (desk suitable for writing, with a chair, in

sleeping rooms)

paragraph 53 (mess-room accommodation shall be separate

from sleeping quarters)

paragraph 55 (a refrigerator of sufficient capacity and

facilities for making hot and cold drinks shall be available

and accessible to fishers at all times)

paragraph 61 (number of tubs or showers or both, number

of toilets, and number of washbasins for fishers)

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paragraph 64 (facilities for washing, drying and ironing

clothes)

paragraph 65 (facilities for washing, drying and ironing

clothes with respect to vessels 45 metres in length and over)

paragraph 67 (separate sick bay with respect to vessels 45

metres in length and over)

Flexibility with respect to differing and distinctive religious and

social practices concerning accommodation - Paragraph 84 of

Annex III provides that: “ The competent authority, after

consultation, may permit derogations from the provisions in this

Annex to take into account, without discrimination, the interests of

fishers having differing and distinctive religious and social practices,

on condition that such derogations do not result in overall

conditions less favourable than those which would result from the

application of this Annex.”

Bearing in mind this flexibility in Annex III, it will be important when

undertaking the gap analysis to consider what national laws, regulations or

other measures are applicable (or not applicable) to:

o undecked vessels, and

o vessels at sea less than 24 hours where fishers do not live on board.

It will also be important to know whether or not the country concerned,

whether at the national or local level, uses gross tonnage as the basis for

regulating requirements for accommodation of fishing vessels.

Finally, it will be important to determine whether there are any differences

in national requirements for fishers on the basis of religious or social

practices.

Social dialogue

The Convention calls, frequently, for “consultation”, defined as “consultation by the

competent authority with the representative organizations of employers and workers

concerned, and in particular the representative organizations of fishing vessel owners and

fishers, where they exist”. The possibility of taking advantage of exclusions, exemptions or

flexibility will be considerably diminished if there are no “representative organizations of

employers and workers concerned, and in particular the representative organizations of

fishing vessel owners and fishers” to be consulted or to conclude collective bargaining

agreements relating to permitted variations from the requirements of the Convention.

It is therefore important for arrangements to be made to ensure that all aspects of the living

and working conditions of all fishers come within the responsibility of one or more

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representative organizations of employers and workers, in particular representative

organizations of fishing vessel owners and fishers.

Administrative structure

It will be important for the country, either at the national or local level, to have in place, or

put in place, the means to enforce national requirements implementing Convention No. 188.

To assist in reviewing what administrative structure already exists and what will be needed,

a matrix concerning Analysis of administrative capacity for implementation of the provisions

of Convention No. 188 has been provided in Appendix III.

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Appendix I - Example of a matrix used for a gap analysis

References to the

Work in Fishing

Convention, 2007

(No. 188)

References to the

Work in Fishing

Recommendation,

2007 (No. 199) –

(guidance, not

binding)

Existing

implementing

measures

Gaps identified Suggested

solutions

PART I: DEFINITIONS AND SCOPE

Definitions and Scope

Definitions – Article

1

Definitions and scope

of application

Scope- Article 2, 3, 4

and 5

and Annex I

PART II: GENERAL PRINCIPLES

Implementation

- Article 6

Competent

authority and

coordination-

Article 7

Responsibilities of

fishing vessel

owners, skippers

and fishers – Article

8

10

PART III. MINIMUM REQUIREMENTS FOR WORK ON BOARD FISHING VESSELS

Minimum age –

Article 9

Protection of young

persons . Paras. 1-5

Medical examination

– Articles 10 - 12

Medical

examination -

Paras. 6-10

PART IV. CONDITIONS OF SERVICE

Manning and hours

of rest – Articles 13-

14

Competency and

training.- Para. 11

Crew list – Article 15

Fisher’s Work

Agreement – Article

16-20, Annex II

Record of service –

para. 12, Special

measures- para. 13

Repatriation – Article

21

Recruitment and

placement – Article

22 (Recruitment &

placement of fishers;

Private employment

agencies)

Payment of fishers –

Articles 23-24

Payment of fishers

– paras. 14-15

PART V. ACCOMMODATION AND FOOD

Accommodation and

Food – Articles 25-28;

Annex III

Paras. 16-34

PART VI. MEDICAL CARE, HEALTH PROTECTION AND SOCIAL SECURITY

Medical care –

Articles 29-30

Paras. 35- 39

Occupational safety

and health and

accident prevention

Articles 31-33

Paras. 40-49

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Social security –

Articles 34 -37

Paras. 50-52

Protection in the case

of work-related

sickness, injury or

death – Article 38-39

PART VII. COMPLIANCE AND ENFORCEMENT

Compliance and

enforcement –

Articles 40-44

Paras. 23-55

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Appendix II – Excerpts from an Office informal opinion on the meaning of “subsistence

fishing” with respect to Convention No. 188.

[...]

In your second question, you asked whether Article 2(2) of Convention No. 188 gives

discretion to national authorities for determining, after consultation, what constitutes

subsistence fishing.

Article 2(2) of the Convention reads as follows:

“In the event of doubt as to whether a vessel is engaged in commercial fishing, the

question shall be determined by the competent authority after consultation.”

This provision of the Convention confers certain latitude to the competent authorities

to determine, in the event of doubt, whether a vessel is engaged in commercial fishing. In so

doing, they may have in certain cases to determine whether a vessel is in fact engaged in

subsistence fishing. In this regard, it should be recalled that the definition of commercial

fishing gave rise to very little debate during the Conference discussions that preceded the

adoption of Convention No. 188 (see International Labour Conference, 92nd Session, 2004,

Report V(2), p. 24, and Record of Proceedings, p. 21/15). As the preparatory work shows, the

intention of the drafters of the Convention was to adopt a comprehensive set of standards on

the living and working conditions of fishers and to limit to the extent possible exclusions

from their scope of application. Therefore, it is only in the event of doubt that the competent

national authorities are called upon to determine whether a vessel is engaged in commercial

fishing, it being understood that the conformity of any such determination with the

Convention would eventually be examined by the supervisory bodies of the ILO. Moreover,

the Office is of the view that any approach which would tend to read in Article 2(2) of the

Convention an exemption or exclusion possibility would not be consistent with either the

letter or the spirit of the Convention.

Finally, you asked whether it would be consistent with the Convention to define the

term “subsistence fishing” by reference to criteria such as the number of fishers on board, the

average income arising from fishing operations or the existence of an employment

relationship. The Office has already provided its views on the exact meaning of subsistence

fishing for the purposes of Convention No. 188 following a request made by the International

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Transport Federation (ITF). You will find enclosed a copy of this document for your

information. As noted therein, the issue of the definition of “subsistence fishing” was raised

on certain occasions during the Conference discussions that preceded the adoption of the

Convention. The Office indicated that the FAO Fisheries Glossary defines “subsistence

fishery” as “a fishery where the fish caught are shared and consumed directly by the families

and kins of the fishers rather than being bought by middle-(wo)men and sold at the next

larger market” (see International Labour Conference, 93rd session, 2005, Report V(2A), p.

77). The FAO Glossary adds that pure subsistence fisheries are rare as part of the products

are often sold or exchanged for other goods or services. As noted in the document attached,

this question was not raised by constituents following these explanations, and it may

therefore be concluded that for the drafters of the Work in Fishing Convention, 2007

(No.188), the FAO Fisheries Glossary provided sufficient guidance on the ordinary meaning

of the term “subsistence fishing” so that no separate definition was warranted. Accordingly,

by the term “subsistence fishing” – as opposed to “commercial fishing” – in Article 1 of the

Convention is to be understood any fishing operations aiming at satisfying the subsistence

needs of the fisher and his/her family and not at obtaining economic gain.

Therefore, to respond to your specific questions, the sole criterion for determining

what constitutes subsistence fishing should be a functional one, i.e. the use and purpose of the

catch (direct consumption by the fisher and his/her family). Elements such as the number of

fishers on board, the average amount of income arising from fishing operations, or the

existence of an employment relationship would appear to bear limited relevance to the

concept of subsistence fishing as understood for the purposes of Convention No. 188.

Therefore, any provision in national law using such criteria to define subsistence fishing

could lead to results that would not be compatible with the Convention.

This is, of course, without prejudice to the possibility offered by Article 3(1) of the

Convention to exclude, under some well-defined conditions, limited categories of fishers or

fishing vessels from all or certain of its provisions.

[...]

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Appendix III - Analysis of administrative capacity for implementation of the

provisions of Convention No. 188

References to the

Work in Fishing

Convention, 2007

(No. 188)

References to the

Work in Fishing

Recommendation,

2007 (No. 199) –

(guidance, not

binding)

Related existing

national law,

regulation or other

measure concerning

this issue

How existing national

law, regulation or

other measure related

to this issue is

enforced. Identify

enforcing agency,

means of action (e.g.

inspection), penalties,

etc. Include any

statistics on

inspections and/or

sample copies of

inspection reports.

Ministry/Department

/Agency that would

be tasked to enforce

this provision of the

Convention, and what

additional resources

would be needed.

PART I: DEFINITIONS AND SCOPE

Definitions and

Scope

Definitions –

Article 1

Definitions and

scope of

application

Scope- Article 2, 3,

4 and 5

and Annex I

PART II: GENERAL PRINCIPLES

Implementation

- Article 6

Competent

authority and

coordination-

Article 7

15

Responsibilities of

fishing vessel

owners, skippers

and fishers – Article

8

PART III. MINIMUM REQUIREMENTS FOR WORK ON BOARD FISHING VESSELS

Minimum age –

Article 9

Protection of

young persons .

Paras. 1-5

Medical

examination –

Articles 10 - 12

Medical

examination -

Paras. 6-10

PART IV. CONDITIONS OF SERVICE

Manning and hours

of rest – Articles

13-14

Competency and

training.- Paras. 11

Crew list – Article

15

Fisher’ Work

Agreement –

Article 16-20,

Annex II

Record of service –

para. 12, Special

measures- para.

13

Repatriation –

Article 21

Recruitment and

placement – Article

22 (Recruitment &

placement of

fishers; Private

employment

agencies)

Payment of fishers

– Articles 23-24

Payment of fishers

– paras. 14-15

PART V. ACCOMMODATION AND FOOD

Accommodation

and Food – Articles

25-28; Annex III

Paras. 16-34

PART VI. MEDICAL CARE, HEALTH PROTECTION AND SOCIAL SECURITY

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Medical care –

Articles 29-30

Paras. 35- 39

Occupational safety

and health and

accident

prevention

Articles 31-33

Paras. 40-49

Social security –

Articles 34 -37

Paras. 50-52

Protection in the

case of work-

related sickness,

injury or death –

Article 38-39

PART VII. COMPLIANCE AND ENFORCEMENT

Compliance and

enforcement –

Articles 40-44

Paras. 23-55